Director of Public Prosecutions v Lockett

[2014] VCC 278

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT BALLARAT
CRIMINAL JURISDICTION

CR-13-00326

DIRECTOR OF PUBLIC PROSECUTIONS

v

BARRY LOCKETT

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Ballarat
DATE OF HEARING:	12 March 2014
DATE OF SENTENCE:	13 March 2014
CASE MAY BE CITED AS:	DPP v Lockett
MEDIUM NEUTRAL CITATION:	[2014] VCC 278

REASONS FOR SENTENCE
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Subject:  Criminal law – plea – sentence
Catchwords:              Aggravated burglary – make threat to kill – threat to destroy/ damage property – intoxicated – remorse – early guilty plea – fine
Legislation Cited:     Crimes Act (Vic) 1958 – Criminal Procedure Act 2009 – Summary Offences Act 1966
Sentence:                  Charge 4: Convicted and ordered to pay a fine of $610.70 – Summary Charge 2: Convicted and ordered to pay a fine of $244.28

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Hoare
For the Accused	Mr C. Pearson

HIS HONOUR: 

1You pleaded not guilty to three charges in Indictment C11236678.1 which was filed over yesterday, and pursuant to s.206 of the Criminal Procedure Act 2009, I ordered an entry of not guilty be made on the record in regard to those, the prosecution having advised the Court they sought to lead no evidence on Charges 1, 2 and 3.

2You then pleaded guilty to Charge 4, which is a charge of threaten to damage property, the property of Adam McHenry. That is an offence against s.198 of the Crimes Act 1958 and the maximum penalty prescribed by Parliament for that offence is one of five years. You also pleaded guilty to a summary charge, that of trespass, an offence under s.9(1)(E) of the Summary Offences Act 1966 for which the maximum penalty prescribed is one of 25 penalty units and/or six months gaol.

3In this instance, I thank Mr Pearson, I have been able to consider his submissions prior to finally hearing them because I had the ability this morning to look at such.  I also take into account of course what has been put to me today by the learned prosecutor.

4The circumstances of this matter were set out and detailed in the prosecution summary and by consent of both counsel make up Exhibit A and the submissions put to me and elucidated upon by Mr Pearson today are also marked as Exhibit 1 for identification.

5At the time of this offence, Mr Lockett was 30, he is now 33.  The victim in the matter was 41.  Looking at your priors, Mr Lockett, they are indicative of a person who unfortunately every now and then gets into trouble, my surmising is that you get into trouble because of alcohol. 

6The offences are of a similar nature and they relate to offences and convictions of damage property and assault.  I agree totally with Mr Pearson that they are nowhere near the dimension of offences that are often before this court.  However, it is to be pointed out that on two occasions you have been sentenced to gaol and on each of those occasions you have been lucky enough to have had leniency given to you by the Court by way of a suspended sentence, it must be pointed out that you served each of those suspended sentences successfully.

7Coming to the circumstances as detailed in the prosecution summary, on 5 May 2012 was indeed Mr McHenry's birthday.  The celebration of that birthday took place at the Shooters Pool Hall, which you attended with a friend, as did two of your family members later in the evening.  That party subsequently adjourned to a number of places but finally to Mr McHenry's home where I note that you, with your sister, topped off the night with the completion of two Jagermeister shots with Red Bull at about 3 am.

8There were apparently some issues of a family nature between your sister and yourself through the night and apparently Mr McHenry became involved in some way or other, it would appear, suffice to annoy you.  An argument developed and it seems for some reason or another once your sister and brother left you determined to leave on your own and suddenly woke up that you did not have your shoes or other gear and decided to go into the house to get them, and that is when the circumstances arose that have been referred to by your counsel as were recorded on the “000” telephone call.

9The offence of trespass occurs, I note that there was no damage to the door but the trespass occurs in you apparently seeking to get your gear.  As you come in your "sconned", to use the vernacular, by Mr McHenry using a cricket back.  As described by the learned prosecutor in his summary, you suffer significant injuries from such.

10The police arrived.  At that stage you commit the summary offence and perhaps, indicative of your state, you say that you were going to come back and fire bomb the house.  Hardly a statement that you would be proud of today.

11However, it is to be accepted that such is consequent upon you being fairly heavily injured by the cricket bat, indeed to a degree that even Mr McHenry apparently was concerned about your state.

12When the police did arrive, as noted in their statement, at 4.10 that morning, McHenry is outside totally intoxicated and you are inside motionless with blood all over you.  You are subsequently breathalysed at the police station at 5.30 and found to be presenting a reading of .266.  That in itself indicates how much alcohol you had had.

13The record of interview was played to the Court, clearly you appear still to be affected by alcohol.  You state in that record of interview that the reason you go in is the reason that is before the court today, because you sought to get your stuff.  To say the least you looked crusty and clearly I accept the statements made in your statement that because of the alcohol that you had had you were unable to remember precisely what had happened.

14As to Mr McHenry, no Victim Impact Statement was filed by the prosecutor in his discretion, I thank him for that.  However it was agreed that it was clear that he was in fear and did suffer from abrasions. 

15In the matters put to me on your behalf, it is clear that you are currently working, albeit in a limited nature, but you do have a good history of work, you have an excellent background in country sport, you have a responsibility - you are a father of three but clearly you have an ongoing responsibility to a four year old child and you have a current partner which you hope to be long-term.

16It is quite clear to me that being now 33, Mr Lockett, it is time for you to wake up.  These occasional, and I think that is the way to put it, outbursts of criminality need to be put in your past, and it seems to me the only way you are going to do that is if you do not partake in grog, because you are obviously a person who cannot handle it.

17Mr Pearson stressed the guilty plea in this matter, albeit late, given that it was to an amended indictment I accept it was lodged at the earliest time upon legal advice.  I accept that not only does such indicate remorse on your behalf for what happened that night but was clearly utilitarian for the community, in the sense that this trial has been able to be resolved and also of benefit to all of the witnesses who would otherwise be called.

18I accept also the comments of Mr Pearson that the charges as pleaded to could have been dealt with in the Magistrates' Court, and also accept that there are no offences since and we would hope sincerely none from now on.

19Mr Pearson has submitted that the issue as to your rehabilitation should be seen by the Court as positive however, as I have said, that would depend upon you controlling the grog and unfortunately it is just those situations that you get involved in that sometimes can lead to very serious consequences.  In this instance it was you being hit with the cricket bat, but unfortunately when you are in a position where you have got no recollection and at 266 you are getting very much to that position, anything can happen, and it is obviously important for you to, if you are going to have a good life with Ms Brereton and look after your young boy, then it is time for you to realise you are an adult.

20Mr Pearson also submitted that in this instance you have in fact served two days gaol.  There has also been the fact that this trial has been hanging over you for some 22 months, that is not really that unusual but the authorities indicate that any delay needs to be taken into account.  When I say not that unusual, not that unusual on a circuit town as this.

21For the totality of all those reasons, in particular your remorse and the guilty plea, Mr Pearson submitted that I should consider an adjourned bond.  In particular he stressed the unusual and extenuating circumstances aspect, which is set out in s.71E, which is one of the purposes for which such an order can be made.

22I have given the matter some consideration, as I say I have had the benefit of being able to consider it since I have had the written submissions.  It is not my view that it would be appropriate in the circumstances, there is no issue that a conviction should be recorded for both charges, the question is what should be the penalty.  It is my view that gaol is not appropriate however I stress to you that this is the third time that you have placed yourself in jeopardy. 

23While I do not accept that an adjourned undertaking would be appropriate, given your age and background, I do think that this matter can be dealt with by way of penalty and it seems to me that the penalties I intend to impose should not be too dramatic, albeit your somewhat restrictive financial position at the moment. 

24Pursuant to the provisions of s.109 the maximum penalty that can be prescribed in regard to the Count 4 matter is one of 600 penalty units.  I do not intend to impose a penalty anywhere near that, but I have determined the appropriate penalty in all the circumstances in regard to Charge 4 on the indictment should be a fine of five penalty units.  The relevant penalty unit at the time of this offence was $122.14.  Five penalty units on that offence would make $610.70 and in regard to the trespass matter, I will impose a fine of two penalty units, making a total of $244.28 which would make a total fine of $854.98.  Given such penalty there is no need for a 6AAA declaration.

25MR PEARSON:  As Your Honour pleases.

26HIS HONOUR:  I am prepared to give your client six months if that is appropriate.

27MR PEARSON:  Yes if Your Honour would, yes.  If Your Honour would give him six months to pay that, thank you.

28HIS HONOUR:  Yes, if you would stand please, Mr Lockett.

29You will be convicted on both of these charges.  In regard to Charge 4 you will be fined five penalty units which amounts to $610.70.  In regard to the summary matter you will be fined two penalty units amounting to $244.28, making a maximum of the total fine you have to pay to the Registrar of this court of $854.98.  I will give you six months to pay that.  Should you not be able to pay it in that time and seek to have an extension of time that matter would come back before me and I would expect you to have paid a considerable amount.  I just stress what I have said to you, it seems to me time that we do not see you in the courts again, all right?  All the best.

30OFFENDER:  Thank you, Your Honour.

31MR PEARSON:  If Your Honour pleases.  Thank you, Your Honour.

32HIS HONOUR:  Yes, thank you, gentlemen.

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